2018 (4) TMI 969 - AT - Service Tax

Validity of SCN - time limitation - whether the Commissioner (Appeals) have rightly held that the show cause notice was bad for invoking of extended period of limitation? - Held that - Section 9 of the General Clauses Act 1897 provides section applies to all Central Acts made after 3 January 1868 and to of regulations made after the 14th day of January 1887 - this ground is not tenable as there are provisions in the Finance Act for the purpose of calculation of limitation. The learned Commissioner (Appeals) have set aside the Order-in-Original both on the ground of limitation and also finding the same to be non-speaking and cryptic. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the show cause notice was valid for invoking the extended period of limitation.

Analysis:
The appeal revolved around the validity of the show cause notice issued by the Revenue to the respondent-assessee for allegedly short paying service tax. The Revenue conducted inquiries based on figures received from service receivers, indicating discrepancies in the taxable turnover declared in ST-3 returns. The show cause notice dated 23 October, 2013 proposed a service tax demand of ?16,80,335 for the period from 2008-09 to 2011-12, along with penalties under various sections of the Act.

The respondent argued before the Commissioner (Appeals) that certain activities were exempted or fell under the Negative List, and that there was no suppression of facts as per audit reports. They contended that the demand invoking extended limitation was unjustified, as the Revenue failed to establish the correct taxable service amounts. Additionally, they highlighted errors in Revenue's calculations, the nature of their activities, and the basis of service tax payment. The Commissioner (Appeals, after considering submissions and audit reports, concluded that the demand was time-barred and not sustainable.

The Revenue appealed to the Tribunal, citing the General Clauses Act and provisions for calculating limitation periods under the Finance Act. They argued that material facts were overlooked by the Adjudicating Authority, including the payment basis for service tax and the inclusion of certain activities like Gobar-Khad in turnover. The Tribunal upheld the Commissioner (Appeals) decision, dismissing the Revenue's appeal and granting consequential benefits to the respondent-assessee in accordance with the law.

In summary, the judgment focused on the validity of the show cause notice in invoking the extended period of limitation for service tax demands. The arguments centered around discrepancies in taxable turnover, payment basis for service tax, classification of activities, and the proper consideration of material facts by the authorities. The decision favored the respondent, emphasizing the need for proper assessment and adherence to legal provisions in tax matters.